Why the Religious Right Can’t Have Its (Straight Wedding) Cake and Eat It Too: Breaking the Preservation-Through-Transformation Dynamic In Masterpiece Cakeshop v. Colorado Civil Rights Commission

In the 2017 term, the U.S. Supreme Court will consider the most significant LGBT-rights case since its 2015 marriage equality decision: Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case presents a question—what I call the Antidiscrimination Question—that has been percolating through lower courts for nearly a decade: may small business owners, such as photographers, bakers, and florists, be exempt from state antidiscrimination laws based on their religious beliefs about samesex marriage? The Religious Right has been squarely behind this effort to carve out religious exemptions for secular businesses from generally applicable antidiscrimination laws.

The Antidiscrimination Question is as significant as the marriage equality question. It may have more significance due to the sweeping scope of what the Religious Right seeks: the creation of quasi-theocratic zones of exemption, disguised in the seemingly neutral concept of “religious liberty,” in which Christian business owners may pick which laws to follow. A decision that the First Amendment trumps antidiscrimination laws when applied to secular businesses discriminating against LGBT couples would have a wide-reaching and devastating impact on the LGBT community, ushering in an era of the Gay Jim Crow.

I have previously addressed the legal and policy axes of the Antidiscrimination Question. Here, I address the theoretical axis, namely the rhetorical tactics being used by the Religious Right in its attempt to achieve what Professor Reva Siegel calls “preservation-through-transformation”—a dynamic through which a group that opposes civil rights reform modernizes its rhetoric after a civil rights victory in an attempt to maintain unequal status regimes. The Religious Right is employing two rhetorical tactics in its attempt to maintain a status regime in which LGBT people are second-class citizens—one descriptive and one legal. Notably, these maneuvers are not the primary arguments made by the Religious Right. Rather, the dynamic is working at a more nuanced level, subordinate to the primary legal argument that the First Amendment’s Free Exercise and Free Speech clauses render application of antidiscrimination law unconstitutional. Because these maneuvers are embedded within and subordinate to the primary arguments, it is important to expose them so that LGBT rights advocates can expressly argue against them and the Court can have the opportunity to expressly address them and break the preservation-through-transformation dynamic.